How a Kavanaugh Court Could Affect Labor and Employment Law

Daily Herald (Arlington Heights, IL), August 16, 2018 | Go to article overview

How a Kavanaugh Court Could Affect Labor and Employment Law


Byline: Submitted by Ice Miller

How a Kavanaugh Court could affect labor and employment law

When it became clear on July 9, 2018, that Judge Brett M. Kavanaugh (53), of the United States Court of Appeals for the District of Columbia Circuit, was to be nominated to fill the vacancy on the United States Supreme Court left by retiring Justice Anthony Kennedy, the immediate question for many employers -- and those of us who provide legal advice to employers -- was "how will a Kavanaugh court affect my workplace?"

While Justice Kennedy has the reputation of being the High Court's "swing vote," particularly with regard to social concerns, his employment decisions have been, for the most part, pro-employer. This term alone, Justice Kennedy joined the decision in Janus v. AFSCME Council 31, which held that government workers who choose not to join unions may not be forced to help pay for collective bargaining, because it violates their free speech rights. Kennedy also agreed with the Epic Systems Corp. v. Lewis decision upholding the enforceability of arbitration agreements containing class and collective action waivers of wage and hour disputes. And, in 2011, Justice Kennedy sided with the majority of the court in Walmart Stores Inc. v. Dukes, a decision that narrowed the definition of the commonality requirement of class actions.

Judge Kavanaugh's decisions have similarly favored-employers. Thus, his confirmation will maintain the Court's current pro-employer leanings. In Midwest Division-MMC, LLC v. National Labor Relations Board (2017), the D.C. Circuit refused to enforce a National Labor Relations Board (NLRB) decision sustaining the right of union employees to have a representative present during noncompulsory job performance peer-reviews. In a separate concurrence, Judge Kavanaugh emphasized that members have no right to representation in peer reviews because such reviews are neither investigatory nor likely to result in discipline. Judge Kavanaugh also stated that the confidentiality of the peer-review process was of essential importance.

Judge Kavanaugh's decisions in discrimination cases under Title VII, however, have been somewhat mixed. …

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How a Kavanaugh Court Could Affect Labor and Employment Law
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